Recently, the Supreme Court (in the reinforced senate) decided which formal requirements are necessary for the donation of securities, as this would be a legal issue of “fundamental importance” (in the view of the Supreme Court).
The facts of the case: In return for supporting and caring for an elderly lady in the last years before her death, the defendant was bequeathed a condominium and € 30,000 in her will. An animal welfare organization was designated as the heir for the remaining part of the estate. After the will was drawn up, the deceased decided to donate half of her securities account to the defendant during her lifetime. At an appointment with her bank advisor, she was informed of all the consequences of the gift and had the defendant registered as co-owner with free right of disposal over her share by instruction to the bank. After the death of the lady, the above-mentioned animal welfare organization sued for half of the securities account. The reason was that, in their opinion, a mere entry as co-owner could not be considered a transfer within the meaning of Section 943 ABGB. In the absence of a transfer, the gift should have been made by notarial deed.
Previous case law on the question of “actual transfer” in the case of gifts was inconsistent, as on the one hand the granting of an exclusive power of disposal and thus the relinquishment of the donor’s right of disposal was required. On the other hand, it was already sufficient if the person alone was able to dispose of the valuable deposit, for example through co-authorization or power of attorney.
The lower courts dismissed the animal welfare organization’s claim, as in their opinion, co-ownership was sufficient as a “real transfer”. The Supreme Court confirmed these decisions.
The reason for the formal requirement of the “actual handover” is primarily to protect the donor. In order to protect the donor from hasty and unintentional gifts, a further act must be performed in addition to the promise to make a gift to ensure that the formal requirement of protection against haste is met.
As a declaration was made by the deceased to the bank in addition to the promise to make a gift, on the basis of which the defendant received the sole right to dispose of her share of the securities account, the Supreme Court argued that sufficient protection was provided and formulated this legal principle: “Securities in a securities account or credit balances in an account are already genuinely transferred within the meaning of § 943 ABGB, § 1 lit d NotAktsG by the fact that the gift giver grants the gift recipient – for example by establishing joint ownership – the legal and factual possibility to dispose of them without his further involvement. The granting of an exclusive power of disposal is not required.”
Source: OGH 2 Ob 122/17f